Court of Appeals of Indiana | Memorandum Decision 46A05-1706-EU 1357 | February 6, 2018 Page 1 of 4

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Joseph J. Zaknoen

Michigan City, Indiana

ATTORNEY FOR APPELLEE

Douglas L. Biege

LaPorte, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Unsupervised Estate: John W. 

Homan,

Appellant-Petitioner,

v.

The Unsupervised Estate of 

Robert L. Homan, Deceased,

Appellee-Respondent

February 6, 2018

Court of Appeals Case No.

46A05-1706-EU-1357

Appeal from the LaPorte Circuit 

Court

The Honorable Thomas J. 

Alevizos

Trial Court Cause No.

46C01-1601-EU-20

Altice, Judge.

Case Summary

[1] John W. Homan (John) appeals following the entry of an order denying his 

petition to convert the Unsupervised Estate of Robert L. Homan (the Estate) to 
Court of Appeals of Indiana | Memorandum Decision 46A05-1706-EU 1357 | February 6, 2018 Page 2 of 4

a supervised estate and for other relief relating to the Estate and granting the

motion to strike filed by the Estate’s personal representative, Paul F. Homan 

(Paul). 

[2] Concluding sua sponte that the order from which John appeals is neither a final 

judgment nor an appealable interlocutory order, we dismiss.

Facts & Procedural History

[3] Robert L. Homan (Robert) died on January 20, 2016. January 28, 2016, Paul 

filed a petition to probate Robert’s 2009 will. On February 18, 2016, the trial 

court entered an order admitting the will to probate, appointing Paul personal 

representative, and authorizing unsupervised administration of the Estate.

[4] On August 1, 2016, John filed his petition to convert to supervised 

administration, in which he argued that the residuary of the Estate was the 

property of a trust Robert created prior to his death, of which John was the 

successor trustee. Paul filed a response in opposition and motion to strike two 

of John’s exhibits, and a hearing was held on August 23, 2016. On January 23, 

2017, the trial court issued its order denying John’s petition to convert to 

supervised administration and granting Paul’s motion to strike John’s exhibits.
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[5] John filed a “Motion to Correct Error”1 on February 21, 2017. Appellant’s 

Appendix Vol. 2 at 128. The trial court held another hearing, but no order was 

issued. On June 20, 2017, John filed a notice of appeal in which he purported

to be appealing from a final judgment. Specifically, he asserted that the trial 

court’s January 23, 2017 order was a final judgment, and that his motion to 

correct error was deemed denied on May 27, 2017. This matter has been fully 

briefed and now comes before us for disposition.

Discussion & Decision

[6] Whether an order is a final judgment governs our appellate jurisdiction. In re 

Estate of Botkins, 970 N.E.2d 164, 166 (Ind. Ct. App. 2012) (citing Ind. Appellate 

Rule 5(A)). A final judgment is one which disposes of all claims as to all parties 

and puts an end to the particular case. Id. (citing App. R. 2(H)(1)). 

Additionally, a trial court may convert an otherwise interlocutory order into an 

appealable final judgment by including certain “magic language” set forth in 

Ind. Trial Rule 54(B). App. R. 2(H)(3); Botkins, 970 N.E.2d at 167. “The lack 

of [appellate] jurisdiction may be raised at any time, and where the parties do 

 

1 Although it is of no real consequence under the circumstances of this case, we note that this motion was 

mislabeled. Because the January 23, 2017 order was not final (as we explain below), John’s purported “Motion 

to Correct Error” was in fact a motion to reconsider. See Citizens Indus. Group v. Heartland Gas Pipeline, LLC, 856 

N.E.2d 734, 737 (Ind. Ct. App. 2006) (explaining that “a party can only file a motion to reconsider with the court 

if the action remains in fieri” and “[i]f the trial court has issued a final judgment, the party must file a motion to 

correct errors rather than a motion to reconsider”), trans. denied; Stephens v. Irvin, 730 N.E.2d 1271, 1277 (Ind. Ct. 

App. 2000) (treating a motion labeled a “Motion to Correct Error” filed before the entry of final judgment as a 

motion to reconsider), trans. denied; Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (1998) (holding that a “motion to 

reconsider” filed after the entry of final judgment must be considered a motion to correct error). 
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not raise the issue, this court may consider it sua sponte.” Botkins, 970 N.E.2d at 

166.

[7] This court has explained that “orders issued by a probate court are not final 

until the estate is closed.” See id. at 167. Here, because the Estate remained 

open after entry of the January 23, 2017 order and the trial court did not use the 

T.R. 54(B) “magic language,” that order does not constitute a final judgment. 

Further, this interlocutory order is not appealable as a matter of right under Ind. 

Appellate Rule 14(A) and no certification of the order by the trial court and 

acceptance of jurisdiction by this court under App. R. 14(B) has taken place. 

For all of these reasons, we lack jurisdiction to entertain this appeal, and we 

therefore dismiss. See Town of Ellettsville v. Despirito, 87 N.E.3d 9, 12 (Ind. 2017) 

(explaining that “in the overwhelming majority of cases, the proper course for 

an appellate court to take where it finds appellate jurisdiction lacking is simply 

to dismiss the appeal”).

[8] Appeal dismissed. 

[9] May, J. and Vaidik, C.J., concur.